The basic facts of the case

November 20, 2006 morning, an old woman in Nanjing CitySimon waterSquare one bus station and 83 bus. People are hurrying to and fro., she was knocked down by a broken bones, after identification constitutes 8 level disability, medical expenses spent a lot. She identified a person is just getting offPeng Yu. She appealed to the court claim more than 13 yuan.

Peng Yu said the innocent. He said, on the morning of 3 buses at the same time by the station, she have to catch the third cars, but their own from second carThe back doorDown. "The car, I saw an old woman fell to the ground, rushed to help her, not and in a short while, another middle-aged man can see, also take the initiative to come help her. She kept saying thank you, then everyone together to send her to the hospital." Peng Yu went on to say, then, it made a 180 degree turn, old woman and their families in that he is "the perpetrators".

At four thirty on the afternoon of September 4, 2007, Gulou District Court of first instance verdict. The court considered the case, there are two main focus of controversy. A, whether the collision; two, loss amount.

The court thinks this accident no fault of the parties. In accordance with the principle of fairness, the loss of the party concerned shall be given appropriate compensation to the victim. Therefore, the loss of the victim Peng Yu judgement of payment of 40%, a total of 45876.6 yuan.

On the same day, her lawyer said: feel satisfied with the judgment of facts, but the damage of 40% less than expected. And Peng Yu says that refuses to accept the decision.The fair responsibility principle

The principle of fairness, impartiality, justice principle, fair principle, is one of the basic principles of the civil law, refers to the special case of the parties have no fault to cause damage, tort must also bear some liability. Be fair liability is the product of the development of modern tort law, it has gradually as tort law of many countries to accept. China's "general principles of civil law" article 132nd for fair responsibilities clearly states: "the parties do not cause damage to the fault, according to the actual situation can be shared by the parties, civil liability." China's "general principles of civil law" on the fair responsibility principle stipulates, interests of the community and the broad masses of the people's will and desire. "Contract law" to the principle of fairness to determine the rights and obligations of the parties, to make up for the lack of legislation in China, plays an extremely important role in the market economy. The concept, the principle of fair liability and content

    (a) the fair responsibility principle

    Fair is fair, reasonable. Chinese scholars generally on the basis of the general principles of the civil law article 132nd to define the fair responsibility principle, namely "the principle of equitable liability is refers to the perpetrator and the victim are not wrong, have occurred in the damage to the facts of the case, a fair consideration as the standard of value judgment, according to the actual situation and may, the imputation principle" share the loss by both parties. The ground [1]. As far as our country is concerned, the fair responsibility principle has its unique legal value, it can make up for the principle of fault liability and no fault liability, undertake insurance and social security system to a certain extent the task. However, the fair responsibility is fuzzy theory. Scholars Kong Xiangjun have discussed, he said: "first, the principle of equitable liability is the judge according to the actual situation 'discretionary', using the standard fuzzy, great flexibility, make the behavior of people difficult to expected their consequences, so the safety value is reduced; secondly, the fair responsibility principle widely used often threaten the security value the principle of fault liability and liability for risk, in other words, behavior based on the fault liability principle and liability for risk does not assume responsibility, because of the principle of equitable liability exists, the consequence is liable still heart no fixed number, thereby involving safety improvement principles."

    (two) the fair responsibility principle includes the contents of

    1, the voluntary, equality, civil subject in civil activities should be equal. The equal opportunity to participate in civil activities, the dominant position of equality, freedom of expression means.

    2, the civil subject to enjoy civil rights and civil obligations should be equal, not unfair.

Set up on the basis of equality of socialist commodity exchange, who also have no right to pay the price obtained free of charge property of others, who did not seek the exchange is not equivalent to unfair means. "Contract law" the pursuit of equivalent trade rights and obligations, in the contract, the obligations of both parties equal emphasis, for unfair acts of the parties may apply to the people's court or an arbitration institution to withdraw, social morality is not allowed to the parties in the contract, only have the right to not assume obligations or obligations not only enjoy the right to. Embodied in the "contract law", is the balance of interests as the standard of value judgment to the adjustment of the contract between the main commodity exchange, the right to determine their contract obligations. Unequal rights and obligations, the interests of the injured party financial disadvantage comes not from its own strength, but from man-made discrimination, this is obviously not fair. In contrast, the other party by virtue of human factors, not pay the price can get asymmetric interests, this is not only contrary to social morality, but also prohibited by law, it will weaken the damage to the motives for innovation. Is unfair to the interests between the parties there are significant imbalances, destroyed the normal people with moral standards, contrary to the good faith, the principle of equivalence paid.

3, the civil subject in civil liability should be fair, reasonable.

    To maintain the fair principle of civil law, every person entitled to civil rights, regardless of any fault, as long as there is damage to the fact, it should be according to the actual situation to share the civil liability, and shared responsibility to be fair and reasonable, not blindly want to let a responsibility and the other party liability relief, not affected by the factors of race, class. Only fully reflect the principle of fairness, can the parties achieve genuine equality of opportunity, equality, the rights and obligations of equality, fair, reasonable share of responsibility, to avoid aggravating the abuse of rights and obligations.

    Two, the principle of fair liability is applied and the concrete conditions

(a) conditions

Apply responsibility principle justice in China should have three conditions:

1, the parties have no fault. This is the basic condition for the principle of equitable responsibility, China's general principles of civil law 132nd stipulation: "the occurrence of the damage parties have no fault, according to the actual situation can be shared by the parties, civil liability." For the "no fault", should include three meanings: "first, not the actor presumed to be at fault. Secondly, cannot find fault party. Once again, the occurrence of damage cannot be determined both sides or one side of the fault, and confirmed or presumed fault is unfair."

    2, there are more serious damage occurs. 　　

    3, not by both parties share the loss, in violation of civil law principle of fairness. The principle of equitable liability flexibility, the fair responsibility principle in the theory of vagueness, such as the equitable liability in constitutive requirements are not strict, often not illegal, often there is no causal relationship between damages and the law, but merely a fact contact etc.. In addition, this feature could also be caused by abuse of the principle of equitable liability in practice, should apply the principle of fault liability principle of no fault liability cases according to the principle of equitable liability, or will all the cases in accordance with the principle of fault liability is difficult to deal with in accordance with the principle of equitable liability is also.

(two) the specific situation

In accordance with the provisions of the general principles of the civil law, the following situations can be applied to the principle of equitable liability:

1, without person of civil action competence, person with limited capacity for civil conduct causes damage to others, the guardian has as much as the responsibility of guardianship

Tort liability without person of civil action competence, person with limited capacity for civil conduct damage to people, also known as statutory agents tort liability. The general principles of the civil law 133rd stipulation: "no one, with limited capacity for civil conduct causes damages to others, his guardian shall bear liability. As the guardian of his duty of guardianship, guardianship responsibility can be appropriate to reduce the." Therefore, to determine the tort liability of legal agent, used two imputation principles: the principle of presumption of fault and the principle of equitable liability, the imputation principle of basic, while the latter is the supplementary liability principle of. The damage occurred after the first presumption, legal agent subjective fault, if the statutory agent cannot prove that he has no fault, it shall bear the responsibility for compensation; if the statutory agent that it has to do the duty of guardianship and no fault, it shall bear the liability for compensation, only can base Yu Gongping considerations, appropriate to reduce its liability. To be clear, in accordance with the provisions of paragraph second of general principles of the civil law 133rd, bear the statutory agent of tort liability may be full responsibility, may also be added responsibility. If a person without capacity for civil conduct, person with limited capacity for civil conduct no personal property, entirely by the legal agent bear with liability; if a person without capacity for civil conduct, person with limited capacity for civil conduct personal property to pay first, from its property, the insufficient part paid by the legal agent. Some scholars believe that the provisions of the general principles of the civil law, the second paragraph 133rd in fact confirmed the property without person of civil action competence, to restrict the fair liability of person of civil action competence. But the author thinks, this section is about the legal agent tort liability provisions of the way, and pay no civil capacity or a person with limited civil capacity, property damages, in spite of justice, but it is just in between it and the legal agent, rather than considering fairness between the offender and the victim.

In addition, "opinions of the Supreme People's Court on some issues for the implementation of the people's Republic of China Law > > (for Trial Implementation)" (hereinafter referred to as the judicial interpretation of the provisions ") 158th, after divorce, minor children against the interests of others, lives together with the child's party shall bear civil liability; if the bear civil liability is difficult, can be ordered with the children living together is not a party to bear civil liability." This provision is not determined and the minor children living together of the party should bear the fair responsibility.

2, the emergency caused damage, risk is caused by natural causes, and the person who took the measures taken and no improper

The general principles of the civil law 129th stipulation: "if the emergency caused the damage, by the person causing the occurrence of danger shall bear civil liability. If the danger is caused by nature, the person who took the emergency shall not bear civil liability or bear civil liability to an appropriate extent." 156th judicial interpretation stipulates: "if the emergency caused losses to others, if the danger is caused by natural causes, actions to take measures without properly, the behavior is not bear civil liability. The victim compensation, appropriate compensation to the beneficiary."

Can be seen from the above provisions, the emergency caused damage, risk is caused by natural causes, and the person who took the measures taken and no improper conditions, two kinds of situations are suitable for the fair responsibility principle: first, hedging themselves interest to risk aversion, namely the hedge and the beneficiary for the same person; second, human interests of the third person to hedge risk aversion, namely the beneficiary for third people. In the two case, the risk is caused by natural causes, and the person who took the measures taken and no improper, hedge or the beneficiary is not the existence of subjective fault, but if according to the fault liability to hedge or the beneficiary full exemption, the victim to bear all the losses, it is obviously unfair. Therefore, the actual situation on the basis of the case by the judges, applied to the principle of equitable liability, in order to protect the interests of the victims, to achieve fairness.

3, people do boldly what is righteous and damages

The judicial interpretation of the provisions of article 142nd: "in order to maintain the state, the collective or the legitimate rights and interests of others and their damage, the infringer unable to compensate for the loss or no violation of people's circumstances, if the victim makes a request, the people's court may according to the number of beneficiaries, and economic conditions, make appropriate compensation to the beneficiary." The scope of this situation is the principle of fair liability.

4, placing objects collapse cause damage, the parties have no fault

The judicial interpretation stipulates that the 155th: "for placing objects collapse causes damage to others, if the parties have no fault, should according to the fair principle of discretion." pilings and the nature of the 126th general principles of civil law, said "the building use, hanging objects" similar, determine the stowage items of civil liability for personal damage caused by the collapse of time, should first apply for 126th adopt the principle of presumption of fault, presumption of piled up have been wrong, and if no items stacked proof the fault, which the parties have no fault by the victim, and bear all the losses and unfair, should apply the principle of equitable responsibility to share.

5, the parties have no fault to cause damage, but the party is damaged in the process for the other's interests or common interests, activities in the

The judicial interpretation of article 157th provides that: "the parties have no fault to cause damage, but the party is damaged in the process for the other's interests or common interests in the activities, may be ordered to each other or the beneficiary to certain economic compensation." This provision also reflects the principle of fair liability requirements.

The above five kinds of situation belongs to the law, but because of the complicated social life, the law may not all end in social life can be applied to the principle of equitable liability situation. For example, a normal driver driving a car on the road, under the wheels of a collapse of a piece of stone, hit the pedestrian B left eye, caused the left eye glass damage, decreased visual acuity. In this case, the driver a pedestrian B were no fault, but in fact it caused more serious losses, if completely by the victim to bear the loss, obviously contrary to the concept of fair, therefore, should apply the principle of equitable liability, by both parties share the loss. The principle of equitable liability malpractice -- fuzziness in theoretical and practical requirements may be abused, to be clear on its limits; but paradoxically, the fair responsibility principle strengths lies in its flexibility, if the application shall not exceed the legal provisions, will lose its vitality, and cannot meet the needs of practice. Therefore, in judicial practice the principle of equitable liability should not be limited to the legal situation, only through the review, exclusion of liability for fault principle and the principle of liability without fault probability, at the same time case and meet three conditions suitable for the fair responsibility principle, can be based on the principle of fairness concept to the referee.

    Factors to be considered in three, apply the principle of fair liability

According to the provisions of the general principles of the civil law of our country 132nd, applied to the principle of equitable liability should consider the actual situation "". Known as the "reality" here, mainly including the following two factors:

(a) the extent of the damage

The occurrence and damage of the degree is a prerequisite for the principle of fair liability.

    1, damage in general, only refers to the victim's damage. The damage fact, refers to the direct loss of property. For indirect losses, if also requires the offender be shared, the offender is too harsh, easily lead to extreme in the pursuit of justice, namely complete tend to protect the interests of victims, in fact another kind of unfair. 　　

    2, the extent of the damage must be more serious, if not share the loss is the victim will suffer serious damage, and is fair, justice idea. If only light losses, so completely by the victims themselves does not violate the fair idea, also will not be applied to the principle of equitable liability. How to determine the extent of damage is more serious, there is no uniform standard, can only be judged according to the actual situation in the case. The extent of the damage is a relative concept, the general view of the damage size, with a particular offender and the victim's view is not necessarily the same. Therefore, in determining the extent of damage, should consider the actual affordability and damage tolerance. In addition, in determining the extent of damage, considering some conditions should be combined with the property of the victim, such as whether the vulnerable, the victim should undertake much risk. But it should be noted that, despite the damage degree include the individual factors, but in the specific environment, its essence is an objective, basic social standards. But in the application of equitable liability principle, to individual factors more account of the parties.

(two) the financial situation of the parties

The economic condition of the party is the basic factor for the fair responsibility principle to be considered, this is determined by the nature and purpose of the principle of equitable liability. That is to say, the principle of equitable liability is to share the loss between the no fault party, then the primary consideration is how the financial situation of the parties.

The financial situation of the parties, namely, the actual economic affordability and capacity, including the economic income, necessary economic expenditure and deal with family, society bear the economic burden. Considering the economic condition of the party, should not only consider the perpetrators of the economic situation, also consider the economic situation, but should focus on the consideration of the former. Considering the perpetrators of the economic situation, mainly on account of the damage to the economic affordability; consider the state of the economy, is mainly on account of the damage to economic capacity. On the basis of comprehensive consideration, if the perpetrators of the economic burden of the relatively strong ability and the capacity of the lower, then can make the offender more sharing of losses, on the other hand, it can make the offender less share the loss; if both parties economic conditions generally quite, can share the loss by both parties; if the parties the economic situation is different, can by the economy in absolute advantage should bear all the loss.

    Four, the principle of equitable liability is different from the principle of fault liability and no fault liability principle is a principle of imputation

    Three liability: fault principle, no fault principle, the principle of equitable liability exists at the same time China's civil law system. The principle of equitable liability is an independent imputation principle. First of all, it is not from the perpetrator of the psychological state, which is not the fault of doer people determine their liability, but based on the concept of socialist ethics and fair people living together rules and requirements. Secondly, in the fact that damage occurred, according to the property status of the parties and other specific cases the referee. Such as a will lease to Party B the business, Party B with the consent of the consent of a housing for a certain decoration, the two sides agreed in the agreement: "termination of the contract, Party B shall return to Party A within the housing decoration". Both parties to fulfill the contract completed, a that B decoration should be free return, and B consider themselves into the housing decoration materials, artificial, this should be a pricing compensation. Both sides have a dispute. The author thinks, the imperfections of the contract so that the two sides have a major misunderstanding of the decoration on the return, Party B has the right to apply to the relevant authorities to withdraw this clause. In addition, in the market economy, any behavior can reflect the values, B input materials, providing a service, should be paid. If returned to a free decoration, is bound to cause great losses to B, and a does not pay any price to get a substantial interest, this is obviously unfair. So, B asked a compensation price of the decoration ideas should be supported. Support B at the request of the spirit of the legislation of our country civil, more embodies the principle of fair liability. 　　

    Five, China will be the principle of equitable liability as an independent principle of imputation, the existing legal basis, but also the needs of judicial practice

    "General principles of civil law" the fourth stipulation: "civil activities should follow voluntary, fairness, making compensation for equal value, honesty and credit principle". The law also stipulates the civil behavior, unfair, a party may apply to a people's court or an arbitration institution to withdraw or change. "General principles of civil law" 132nd stipulates that: "the parties do not cause damage to the fault, according to the actual situation can be shared by the parties, civil liability". "General principles of civil law" 133rd stipulates: "the guardian as the duty of guardianship, his civil liability may be appropriately reduced". The principle of fair liability article 132. Secondly, in the judicial practice, the parties have no fault tort damages, if not a liability to be adjusted, so that the victims will not only suffer have to bear all the losses against the spirit of the legislation. Because of this, the principle of equitable liability is fully embodied in the judicial practice, not only in line with China's legislative spirit, also is the realistic need.

    Six, the principle of equitable liability is a new development of the tort law, is an important principle of civil law

    The principle of equitable liability fair idea people living together rules and the socialist morality level of civil legal norms, establish the rights and obligations between the two parties, remedy the inadequate legal provisions, not only effectively protect the legitimate rights and interests, and to promptly resolve disputes, prevent the expansion and intensification of contradictions, promote stability and unity, stable social order with the broad masses of the people, will, desire, the tort theory is the development and perfection of. The principle of fault liability in tort law theory and the principle of liability without fault on the principle of equitable liability, therefore, the principle of equitable liability in practice can not fully reflect, this will cause irreparable damage a party to the contract when the fact. For example, a to B to help work, because of unexpected, to a physical injury, from the fault liability, no fault of the parties, no fault liability principle adjustment range, the damage only a personal commitment. From the perspective of fairness, according to both property status and other circumstances, fair and reasonable sharing of responsibilities, a loss will be reduced, but also reflects the principle of fair moral category. Defects in the legislation, often from the moral values of equity, to supplement the lack of legislation. China's "civil law" and "contract law" the fair principle of the responsibility to clear and the principle of fairness as a prerequisite for the rights and obligations of the parties, is added, the development of tort legislation. 　　

    In summary, the fair responsibility principle is an important principle in our civil law, it makes up for the principle of fault liability and no fault liability principle, the principle of equitable liability in our country will be identified as an independent imputation principle, is a new development of the tort law. However, because of the existence of fuzziness, some in theory, therefore, in the judicial practice, apply the principle of equitable liability must strictly master its using conditions and scope, to prevent abuse of the principle of equitable liability, the law applicable to cause confusion.

Relevant views

 The imputation principle of the civil law countries or regions generally include the principle of fault liability (including the presumption of fault liability principle), principle of liability without fault, but very few fair as an imputation principle shall apply, the more likely to appear in the infringement of a specific situation, such as the Taiwan area of tort law. But in the mainland of China civil law, clear as a principle of imputation. "General rule of the civil law" 132nd stipulates that: "the parties do not cause damage to the fault, according to the actual situation can be shared by the parties, civil liability." The court has to be applied directly in the copyright infringement case no fault of the parties, then the sentence "share the civil liability of Peng Yu".

   At first glance it seems relevant court law does not apply for the place, if there is any problem, it is legal and policy issues. But in the existing legal provisions, should consider the current "fair liability principle" the scope of application? The court found that the parties have no fault, how to "share the civil liability according to the actual situation," by the parties? This is the problem of value judgment, and discretion space greatly. I should be a strict definition of "reality" and "sharing", defined in the scope of the minimum compensation, to reduce the risks. Why such a master? This is determined by the interaction of law and morality of the law, and the cover is not isolated, there is close interaction with the moral, one of which is that, the law plays a promoting effect on moral evolution, rather than impede. "The Peng Yu case" in the trial of a certain extent will hinder the impact and impede their universal moral rules, is bound to hinder the evolution of morality, this phenomenon seems to have appeared.

   Thus, in the existing legislation policy, suggested that the court carefully "fair liability principle".